By Michael Salad, Esq. and Delia Clark, Esq.
Beginning December 5, 2025, Delaware homeowners will have a new estate planning tool that allows real estate to pass to a designated beneficiary when the homeowner dies—without probate. Governor Meyer signed House Bill 147 (Substitute 1), enacting the Uniform Real Property Transfer on Death Act, which authorizes Transfer on Death (TOD) deeds in Delaware.
What Is a Transfer on Death Deed?
A Transfer on Death deed works like a payable-on-death bank account. It allows a property owner (the “transferor”) to record a deed nominating one or more “designated beneficiaries.” During the homeowner’s lifetime, nothing changes—the homeowner maintains full control over the property, meaning that the homeowner may sell or mortgage the property, or revoke the TOD deed. When the owner passes away, title transfers automatically to the nominated beneficiary, bypassing probate. The TOD deed must be signed, notarized, witnessed, and recorded in the county’s Recorder of Deeds before the owner’s death.
Who May Be a Beneficiary?
Under Delaware’s new law, the beneficiary must be a “person,” which primarily includes an individual, business entity (such as an LLC) or trust. This means that if your goal is for property to end up in your revocable living trust, you may nominate the trust on the TOD deed or you may transfer the property into the trust during your lifetime.
Why the Law Matters
For many families, the probate process in Delaware—though straightforward—adds time and expense. A TOD deed allows homeowners to avoid the probate process for their primary residence or vacation home while retaining full lifetime control. A TOD deed may make transfers clearer for surviving family members, reducing uncertainty at a difficult time. However, beneficiaries of a TOD deed will inherit the property “as-is,” subject to mortgages, liens and other encumbrances. In addition, a TOD deed does not include provisions for minors, disabled beneficiaries or contingencies if a beneficiary predeceases the homeowner.
How to Create or Revoke a TOD Deed
A valid TOD deed:
- May use the statutory form authorized under the new law.
- Must include the exact legal description of the property being conveyed.
- Must be acknowledged with the same formality as other deeds in Delaware.
- Must be recorded before the owner’s death in the county in which the property is located.
The deed may be revoked by recording a new TOD deed or a written revocation at any time. When the transferor passes away, the deed transfers the property to the beneficiary, subject to liens, mortgages and other encumbrances.
Conclusion
Delaware’s adoption of a Transfer on Death deed affords homeowners a simple tool for transferring real estate outside probate. However, since the deed limits a transferor’s ability to safeguard the property for future beneficiaries, homeowners should consult with an attorney to ensure the TOD deed fits with their broader estate plan. Using a revocable trust generally offers more flexibility and accommodates unforeseen circumstances.
Michael Salad is an attorney in Cooper Levenson’s Business & Tax practice group. He concentrates his practice on estate and asset protection planning, probate and trust administration, special needs planning, business transactions, mergers and acquisitions and tax matters. Michael holds an LL.M. in Estate Planning and Elder Law. Michael is licensed to practice law in Florida, New Jersey, New York, Pennsylvania, Maryland, Connecticut, Georgia, Massachusetts, Alabama, Arizona, Virginia and the District of Columbia. Michael may be reached at (954) 889-1850 or via e-mail at msalad@cooperlevenson.com.
Delia Clark is an attorney in Cooper Levenson’s Bankruptcy and Financial Restructuring Group. Delia is licensed to practice in Delaware, New Jersey, Pennsylvania, and the District of Columbia. She may be reached at 856-857-5510 or via email at dclark@cooperlevenson.com.
The content of this post should not be construed as legal advice. You should consult a lawyer concerning your particular situation and any specific legal question you may have.